Debt Recovery Appellate Tribunal - Mumbai
Bhavani Handloom Industries vs State Bank Of Bikaner And Jaipur on 17 December, 1997
JUDGMENT
R.A. Mehta, Presiding Officer
1. The short and the only point about acceptance of 40 Hundies and the liability thereunder is involved in this appeal preferred by the original defendants against whom the decree for Rs. 13,85,635.15 with future interest at the rate of 6% per annum is passed on the basis of the said 40 Hundies.
2. The facts which are not disputed are as follows :
M/s. Bhilwara Wooltex who is not the party to the suit had drawn 40 Hundies on different dates for different amounts on the documents during the period from 24.12.1985 to 11.9.1986. The Hundies were in favour of the applicant Bank. The amounts under the Hundies were payable after the particular period. The applicant Bank on the receipt of the Hundies forwarded them through Punjab National Bank for payment. The defendants in whose name the Hundies were drawn dishonoured them.
3. It was alleged by the applicant Bank that the Hundies were accepted by the defendants on their premises. In spite of acceptance the defendants have refused to pay Hundies amounts which were calculated at Rs. 11,98,134.20. On addition of interest @ 6% p.a. the Bank demanded the dues from the defendants. When the defendants refused to pay the dues the Bank had filed the suit in the District Court of Bhilwara on 9.1.1989 for the recovery of Rs. 13,85,635.15.
4. The defendants by their written statement filed on 30.10.1991 resisted the claim and denied the acceptance of Hundies. According to them the Hundies were accepted by one Surinder Kumar who was neither the Partner nor the Agent of the defendant. It was thereby contended that there was no privity of contract between them and the Bank. It was further contended that under an agreement with Bhilwara Wooltex they were sending the goods to defendants for sale on consignment basis for which the defendants were getting the commission of 2% which was later increased to 2.5%. Defendants had earned Rs. 3,23,945.09 towards such commission. With these contentions the claim of the Bank was denied in toto.
5. On consideration of the oral as well as documentary evidence the Presiding Officer, Debts Recovery Tribunal, Jaipur before whom the suit was transferred has held that the Hundies were accepted by Surinder Kumar, Pawan Kumar and Ashwini Kumar for and on behalf of the defendants and as such the defendants cannot escape from their liability to pay the dues under the said Hundies. The defendants thus are directed to pay the suit amount along with future interest @ 6% p.a. from 9.1.1989 till realization of the amount.
Aggrieved by this order the defendants have preferred this appeal.
6. The only point raised and canvassed by Mr. Ahmed, the learned Advocate on behalf of the defendants is that the defendants cannot be fastened with the liability on account of the acceptance by Surinder Kumar, Pawan Kumar and Ashwini Kumar who were acting as the agents of Bhilwara Wooltex and who were simply bringing the goods to the defendants for sale under the agreement between the defendants and Bhilwara Wooltex. As against it, Mr. Chandak, the learned Advocate on behalf of the Bank supported the finding recorded by the Presiding Officer.
7. There is thus no dispute about the acceptance of Hundies by Surinder Kumar, Pavan Kumar and Ashwini Kumar. If this acceptance or their signing of the Hundies was qua the agents of Bhilwara Wooltex then obviously the defendants cannot be made liable for dishonouring the Hundies. But then if it is proved that they had signed the Hundies for and on behalf of the defendants, the defendants cannot escape from their liability. The evidence of Rajesh Gupta, Branch Manager of the applicant Bank not only explains the procedure about the Hundies, but further states that :
"After the Hundies had been accepted by the consignee Industries, the documents of title to goods for purpose of receiving goods from respective transport companies by consignee industries were handed over to it. The documents were delivered to consignee industries and they received goods under each of the invoices. The consignee did not make the payment of Hundies......on due dates to PNB Branch".
The consignee industries referred to by the witnesses is nothing but the defendants. Delivery of the goods at the business of the defendants is even accepted by the witness Pawan Kumar who has been examined on behalf of the defendants.
8. The Banking authorities have thus not only shown that the defendants were benefited on account of the delivery of the goods but further proved by producing the originals that the goods and thereby the Hundies were accepted under the seal and stamp of the defendants. We have already seen that the acceptance by Surinder Kumar, Pawan Kumar and Ashwini Kumar is not disputed. Now if they were acting as the Agents of Bhilwara Wooltex, there was no propriety much less any explanation as to how the Stamp and Seal of the defendants appeared on each Hundi. The signatures were made above the stamp of the word 'partner'.
9. The applicant Bank tried as a last resort to the dues through one Joginder Pal Singh Rathee, Advocate and Notary Public for Panipat Sub-Division. He had been to the defendants on 16.5.1987. The date of his report and of his visit to defendants assume importance particularly when there was no litigation or apprehension of litigation. It also assumes significance on account of the presence of Surinder Kumar. The report of the Notary dated 16.5.1987 shows:
".... Surinder Kumar who introduced himself as partner of the said M/s. Bhawani Handloom Industries was present there. I presented and showed the originals of the above said Hundi to him who admitted its execution and also accepted it to be duly signed by the partner on behalf of the said M/s. Bhawani Handloom Industries, but he refused to make payment of the principal amount of the said Hundi as well as other charges, etc. Surinder was not ready to give any statement in writing in this respect."
There is absolutely no reason to disbelieve this report which has been duly proved and produced on record. It is difficult to imagine that the Notary Advocate would introduce the false and baseless theory of Surinder introducing to him as a partner of defendant firm. This report falsifies the evidence adduced on behalf of the defendants that the presence of Surinder was in the capacity of the Agent of Bhilwara Wooltex.
10. The relationship of Surinder and two others with the defendants and their partners would further expose the defendants when they tried to disown the Hundies and their acceptance. True it is that the partnership of defendants consisted of Rajinder Kumar Dhanpat Rai, Mayadevi w/o Pawan Kumar, Parsottam Das Dhanpat Rai and Rekha Rani Surinder Kumar (underlines supplied). The partnership deed produced on record is dated 1.4.1986. The earlier partnership on 1.4.1981 was between Rajinder Kumar and Mayadevi alone. On the basis of partnership deed dated 1.4.1986 one can immediately know the relationship between Surinder Kumar and Pawan Kumar at least. In view of the relationship it is more probable that Surinder Kumar was posing himself to be partner of defendants instead of his wife Rekha Rani than acting as the Agent of Bhilwara Wooltex. So is the case with Pawan Kumar. The relationship further appears to be the reasons as to why and how they have obliged the defendants by examining themselves as witnesses on behalf of the defendants.
11. Mr. Ahmed, the learned Advocate on behalf of the defendants relying upon the letter dated 4.1.1989 received by the defendants from Bhilwara Wooltex urged that the defendants case gets proved from it. In that letter, Bhilwara Wooltex had undertaken the responsibility of the Hundies and dishonouring them. True it is that it has been mentioned that "the ultimate responsibility of the amount of returned Hundies and interest thereon is ours....." But then the contents have to be read as a whole. The object of the letter was to call for the information of returned Hundies. It reads :
"We wanted you to confirm the dues of Hundi amount and the interest thereon so that the time for litigation may extend...."
If the defendants were only concerned with getting the commission on consignment basis, there was no reason as to why the defendants were called upon to confirm the dues of Hundi amount and interest thereon. It may be that it was not acted upon by the defendants as claimed by Mr. Ahmed. This conduct of not acting upon is absolutely insignificant. Firstly because the letter in question was dated 4.1.1989 and the suit was filed by the Bank for which there was an apprehension in the same letter on 9.1.1989. Secondly because of the cordial relationship. There was therefore no scope and time for acting upon the said letter. Such a letter was not even expected in the course of transactions of consignment basis or the commission basis.
12. For all these reasons and the circumstances and facts proved on record, we have no hesitation to hold that the acceptance was for and on behalf of the defendants and not in the capacity of the alleged agents of Bhilwara Wooltex. Surinder Kumar, Pawan Kumar and Ashwini Kumar had direct authority to act as partners of defendants and in fact they acted and posed themselves as partners. The learned Presiding Officer was thus justified in fastening the liabilities under the Hundies to the defendants on account of their acceptance through Surinder Kumar, Pawan Kumar and Ashwini Kumar.
13. The appeal thus merits no consideration and as such it is liable to be dismissed. There are no reasons for departing from the normal rule of costs following the consequences.
I thus pass the following order.
ORDER Appeal is dismissed with costs. Costs quantified at Rs. 5,000/-.
Amount of Rs. 6 lacs deposited by the appellant in compliance with the order dated 9.6.1997 shall now be adjusted by the Bank towards its dues.
R and P be sent back.